Okay, okay - I know it is an unpublished case, but it is still big news, and helpful. In Kirk v. United States, the Court remanded a case for resentencing where the defendant complained that he was not an Armed Career Criminal. The defendant originally pled guilty in 2005, and was sentenced under the ACCA to 190 months. After Begay came out, Kirk filed a 28 U.S.C. section 2255 petition, alleging that his counsel was ineffective for failing to raise a Begay type claim.
On appeal, the Government conceded that under Begay and its progeny, one of Kirk's previous convictions did not qualify under the ACCA. Although the Government did not admit that this constituted ineffective representation, the Government did submit that resentencing under the 0-10 (non ACCA) statutory range was appropriate.
Judges Sutton, Griffin and White agreed. The Court found that "As a result of his erroneous classification as an armed career criminal, Kirk received a sentence of 190 months, well above the 120-month statutory maximum that would otherwise apply to his felon-in possession conviction. 18 U.S.C. § 924(a)(2). This sentence—one 'that the law cannot impose upon [Kirk]'—undoubtedly represents a miscarriage of justice, making relief under § 2255 appropriate." The Court remanded for resentencing.
"Extraordinary" Pretrial Publicity No Barrier to Death Sentence
On January 3, 2002, Jackson and his half-brother, Jeronique Cunningham, shot and killed two children, including a three-year-old girl, during a house robbery. Ohio sentenced Jackson to two separate death sentences -- one for each child. Throughout Jackson's post-conviction proceedings in Ohio, Jackson raised numerous claims concerning the jury voir dire process -- one of which was ultimately successful, and had one of his two death sentences overturned.
The Sixth Circuit focused on Jackson's claims concerning extensive pre-trial publicity. The town where the muders took place -- Lima, Ohio -- was a small, close community. The local newspaper consistently identified Jackson and Cunningham as the sole suspects in the case starting three days after the murder. Every step of the legal proceeding against them was chronicled. Jackson had to wear a bullet-proof vest to his preliminary hearing because tensions in the town were running so high. Additionally, the trial of Cunningham occurred just prior to that of Jackson. The media covered every detail of the trial. Cunningham received the death penalty two weeks before jury selection began in Jackson's trial.
The trial court denied Jackson's motion for a change of venue, and curtailed his attempts during voir dire to ask prospective jurors about their exposure to pre-trial publicity. The Sixth Circuit was clearly troubled by the circumstances of Jackson's trial, particularly his jury, but in the face of AEDPA deference and strong Supreme Court precedent emphasizing the discretion of trial judges to manage voir dire, the Court rejected Jackson's habeas petition.
Career Offenders and Crack Reductions
United States v. Jackson, 678 F.3d 442 (2012).
Panel of Judges Merritt, Boggs, and Clay. Judge Boggs dissented.
Decided May 8, 2012.
Rehearing en banc denied on July 9, 2012. Mandate issued July 17, 2012.
This one's been around a couple months, but is worth mentioning here b/c the COA just denied rehearing en banc.
Career offender. Sentencing was delayed to see if Congress would lower the crack penalties. Court finally sentenced the defendant on July 16, 2010. Court did not apply the CO GLs. Instead, gave the D 150 months. This sentence was w/i the crack GLs that would have applied but for the CO enhancement.
While the case was on appeal, the FSA became law. D sought remand for reduction of sentence.
Was the sentence based on the career-offender GL or the crack GL?
While the D qualified for the CO enhancement, the focus was the crack GL actually applied. "To do otherwise is to impose a harsh sentence on defendant when the severity of the old guidelines has been criticized by nearly every stakeholder in the criminal justice system, as well as by Congress."
Remanded to give dist ct the chance to revisit the sentence in light of the new, lower, retroactive crack GLs.
The crack GLs were "a relevant part" of the sentencing framework.
The procedural posture of this case makes it a little different---direct appeal. But the COA explicitly remanded to save the D from having to file a motion for a reduction under 3582(c)(2).
Judge Boggs dissented.
He finds that the applicable GL range was the pre-departure range: the CO range here. That range did not change with the FSA, so no reduction in sentence possible. Also finds that FSA statutory sentencing ranges are not retroactive. Cites Carradine.
Panel of Judges Merritt, Boggs, and Clay. Judge Boggs dissented.
Decided May 8, 2012.
Rehearing en banc denied on July 9, 2012. Mandate issued July 17, 2012.
This one's been around a couple months, but is worth mentioning here b/c the COA just denied rehearing en banc.
Career offender. Sentencing was delayed to see if Congress would lower the crack penalties. Court finally sentenced the defendant on July 16, 2010. Court did not apply the CO GLs. Instead, gave the D 150 months. This sentence was w/i the crack GLs that would have applied but for the CO enhancement.
While the case was on appeal, the FSA became law. D sought remand for reduction of sentence.
Was the sentence based on the career-offender GL or the crack GL?
While the D qualified for the CO enhancement, the focus was the crack GL actually applied. "To do otherwise is to impose a harsh sentence on defendant when the severity of the old guidelines has been criticized by nearly every stakeholder in the criminal justice system, as well as by Congress."
Remanded to give dist ct the chance to revisit the sentence in light of the new, lower, retroactive crack GLs.
The crack GLs were "a relevant part" of the sentencing framework.
The procedural posture of this case makes it a little different---direct appeal. But the COA explicitly remanded to save the D from having to file a motion for a reduction under 3582(c)(2).
Judge Boggs dissented.
He finds that the applicable GL range was the pre-departure range: the CO range here. That range did not change with the FSA, so no reduction in sentence possible. Also finds that FSA statutory sentencing ranges are not retroactive. Cites Carradine.
CP Case and Trial Issues: Rape Shield, Double Jeopardy, and More
United States v. Ogden, Nos. 09-6507/10-5276 (6th Cir. July 17, 2012) (to be published).
Panel of Judges Griffin, Kethledge, and Thapar (E.D. Ky.).
Case arose out of an on-line relationship between a 34-year-old man and a 15-year-old girl. Persuading a minor to engage in sexually explicit conduct to produce child pornography (CP).
Defendant went to trial. On appeal, he argued that he should have been allowed to present evidence of on-line conversations b/t the victim and other men. He said this evidence was critical b/c it showed other men induced the victim to create the CP. The COA rejected the arguments and affirmed.
Issue I: Double Jeopardy.
* We've seen this issue more and more recently. Possession charge + receipt charge = double jeopardy? Not here.
* Ct cites United States v. Dudeck, 657 F.3d 424 (6th Cir. 2011).
* Possession charge here not a lesser included offense b/c receipt charge here involved receipt of images through a computer. The possession offense sprang from the transfer of the images to a different medium (an external hard drive).
* Different conduct, so possession not a lesser-included offense of receipt.
Issue II: Knowingly Receiving Images.
* D argued that to "knowingly receive images" one must know, the minute one receives an image and w/o even having looked at it, that the image is CP.
* Not so; one need only be aware that "receipt of the illegal images 'is practically certain to follow'" from one's conduct.
* And there was ample evidence that D here was practically certain that he would receive CP.
Issue III: Someone Other than D Coaxed Victim to Produce Images.
* Record shows D asked victim to produce images. She produced pics during her "relationship" with D.
* Gov did not violate Brady by failing to produce the chat logs (until the day before trial) of victim's conversations with other men. Logs not admissible b/c of Rule 412, so not subject to Brady.
* Dist ct didn't abuse discretion by refusing to adjourn trial b/c of this evidence.
* Due process and Constitution don't trump here b/c logs not critical to D's defense. Enough other evid that D induced victim to engage in sexual conduct and film it. Rape-shield interests were strong here: protects victims and encourages them to come forward, the COA found. And victim here a minor, so even stronger interest.
Issue IV: Restitution.
* D argued that dist ct should have admitted the chat logs at restitution hearing. D was required to pay most of victim's psychotherapy costs.
* But nothing in record that dist ct excluded chat logs at hearing.
* And rules of evidence don't apply at sentencing, so can't assume the dist ct excluded the evidence.
Panel of Judges Griffin, Kethledge, and Thapar (E.D. Ky.).
Case arose out of an on-line relationship between a 34-year-old man and a 15-year-old girl. Persuading a minor to engage in sexually explicit conduct to produce child pornography (CP).
Defendant went to trial. On appeal, he argued that he should have been allowed to present evidence of on-line conversations b/t the victim and other men. He said this evidence was critical b/c it showed other men induced the victim to create the CP. The COA rejected the arguments and affirmed.
Issue I: Double Jeopardy.
* We've seen this issue more and more recently. Possession charge + receipt charge = double jeopardy? Not here.
* Ct cites United States v. Dudeck, 657 F.3d 424 (6th Cir. 2011).
* Possession charge here not a lesser included offense b/c receipt charge here involved receipt of images through a computer. The possession offense sprang from the transfer of the images to a different medium (an external hard drive).
* Different conduct, so possession not a lesser-included offense of receipt.
Issue II: Knowingly Receiving Images.
* D argued that to "knowingly receive images" one must know, the minute one receives an image and w/o even having looked at it, that the image is CP.
* Not so; one need only be aware that "receipt of the illegal images 'is practically certain to follow'" from one's conduct.
* And there was ample evidence that D here was practically certain that he would receive CP.
Issue III: Someone Other than D Coaxed Victim to Produce Images.
* Record shows D asked victim to produce images. She produced pics during her "relationship" with D.
* Gov did not violate Brady by failing to produce the chat logs (until the day before trial) of victim's conversations with other men. Logs not admissible b/c of Rule 412, so not subject to Brady.
* Dist ct didn't abuse discretion by refusing to adjourn trial b/c of this evidence.
* Due process and Constitution don't trump here b/c logs not critical to D's defense. Enough other evid that D induced victim to engage in sexual conduct and film it. Rape-shield interests were strong here: protects victims and encourages them to come forward, the COA found. And victim here a minor, so even stronger interest.
Issue IV: Restitution.
* D argued that dist ct should have admitted the chat logs at restitution hearing. D was required to pay most of victim's psychotherapy costs.
* But nothing in record that dist ct excluded chat logs at hearing.
* And rules of evidence don't apply at sentencing, so can't assume the dist ct excluded the evidence.
More confusion on upward variances
In a case decided Friday, United States v. Brinley, 10-5829, the Court seemed to add some confusion to the already perplexing world of variance appellate review. In Brinley, the defendant received a sentence of 108 months, despite: (1) a Guidelines range of 63-78 months, (2) a Government request for a sentence of 63 months, and (3) the defendant's request for a downward variance based upon mitigating circumstances. In holding that the 45 month upward variance from the Government's suggested sentence was substantively reasonable, the Court noted that although there must be a "correlation" between the extent of variance and the reasons for the variance, that this was accomplished in the present case, because the district court cited to 3553(a) factors, and "never lost sight" of the Guidelines range. ?????? It is difficult to determine how the analysis of this case falls in line with other variance reviews.
As a side note, the Court noted that the district court had violated its own local rule, in that the court failed to give pre-sentence notice of its intent to consider an upward variance. The Court noted that because the defendant was aware of the facts that the district court utilized to impose the upward variance, that the defendant could not prove prejudice under a plain error standard of review.
This case is worth a read, but seems to really confuse the issue of standard of review for an upward variance. There is no discussion of the axiom "the greater the variance, the greater the explanation required" that seemed to be running through upward variance cases.
SORNA registration tiers matter
United States v. Stock, No. 10-5348, found here. Mr. Stock raises various challenges to SORNA itself, and loses them. He challenges the determination of his base offense level and wins that argument. Because he won that argument and got a remand, the Court only briefly addressed the reasonableness of his way-over-guidelines sentence (though they did smack the government for going overboard at sentencing).
SORNA violators are placed into three tiers - Tier I, Tier II, Tier III - based on the nature of their underlying conviction(s). Base offense levels are 12, 14, and 16 respectively. Mr. Stock's PSR calculated his based offense level starting at the Tier III offender level. Tier III is reserved for the worst crimes. Among other factors, they involve some form of genital contact. The Indiana crimes Mr. Stock had been convicted of did not require genital contact for conviction. The government attempted to show that though Mr. Stock plead guilty to sexual battery, he had actually raped his victims. The district court stated it did not consider the information presented because it was not reliable enough. However, it did still apply the Tier III base offense level.
The Sixth Circuit found Mr. Stock's convictions should have placed him in Tier II and remanded for resentencing. There's an interesting footnote about how to determine what tier is assigned to what prior convictions. Apparently, the Seventh Circuit is using a modified categorical approach similar to that used with Armed Career Criminal determinations.
When the Court addressed the length of Mr. Stock's sentence, it went into some detail about how it was an outlier when compared with sentences of similar SORNA violators. It also used the "more substantial variances require more substantial justifications" analysis largely absent from the Court's recent ruling in United States v. Brinley, No. 10-5829 (discussed in another blog entry).
SORNA violators are placed into three tiers - Tier I, Tier II, Tier III - based on the nature of their underlying conviction(s). Base offense levels are 12, 14, and 16 respectively. Mr. Stock's PSR calculated his based offense level starting at the Tier III offender level. Tier III is reserved for the worst crimes. Among other factors, they involve some form of genital contact. The Indiana crimes Mr. Stock had been convicted of did not require genital contact for conviction. The government attempted to show that though Mr. Stock plead guilty to sexual battery, he had actually raped his victims. The district court stated it did not consider the information presented because it was not reliable enough. However, it did still apply the Tier III base offense level.
The Sixth Circuit found Mr. Stock's convictions should have placed him in Tier II and remanded for resentencing. There's an interesting footnote about how to determine what tier is assigned to what prior convictions. Apparently, the Seventh Circuit is using a modified categorical approach similar to that used with Armed Career Criminal determinations.
When the Court addressed the length of Mr. Stock's sentence, it went into some detail about how it was an outlier when compared with sentences of similar SORNA violators. It also used the "more substantial variances require more substantial justifications" analysis largely absent from the Court's recent ruling in United States v. Brinley, No. 10-5829 (discussed in another blog entry).
What is stale? Not this warrant.
United States v. Archibald, No. 11-5488. Opinion is here. Government's appeal of motion to suppress granted below. Warrant evaluated under Tennessee's Rules of Criminal Procedure because it was issued by a state court. Three-day delay between controlled buy and warrant does not make information stale because rules say to get the warrant within 72 hours, which the officers did. Five-day delay in execution of the warrant was OK under the Rules, and there was no evidence of changed circumstances at the address to be searched. Even though officer had just met the prostitute used as a CI for the controlled buy, other officers had used her in the past with positive results. No credibility issue there.
Apprendi applies in juvenile proceedings
United States v. CTH, No. 10-1487. Opinion is here. CTH was 16 when he was busted for possession with intent to deliver heroin. Juvenile sentencing ("official detention") is set by the lesser of five years detention or the maximum of the adult guideline range applicable to an otherwise situated adult. The district court found CTH responsible for 647 grams of heroin and gave him five years official detention. Without that finding, CTH could have received as little as 12 months official detention.
CTH argued that Apprendi should apply to the quantity finding because it, in effect, increased his maximum penalty. The government flailed around a bit in opposition. The Sixth Circuit ruled Apprendi applied and the drug quantity needed to be proven beyond a reasonable doubt.
CTH argued that Apprendi should apply to the quantity finding because it, in effect, increased his maximum penalty. The government flailed around a bit in opposition. The Sixth Circuit ruled Apprendi applied and the drug quantity needed to be proven beyond a reasonable doubt.
Extreme literalism in defining "life"
It seems like only a week ago that the Supreme Court held that "youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole." The "characteristics of youth, and the way they weaken rationales for punishment, can render a life-without-parole sentence disproportionate." The "transient rashness, proclivity for risk, and inability to assess consequences" that are associated with youth fundamentally lessen a "child's 'moral culpability' and enhance[] the prospect that, as the years go by and neurological development occurs, his 'deficiencies will be reformed.'"
Come to think of it, it actually was only a week ago, in Miller v. Alabama. That case reaffirmed the Court's decision in Graham that such youthful offenders "are less deserving of the most severe punishments" and extended that precedent even to homicide offenses.
Enter today's decision, Bunch v. Smith. Eleven years ago, when he was 16 years old, Mr. Bunch participated in a horrific robbery and rape. When he was sentenced, the judge stated that "I just have to make sure that you don't get out of the penitentiary," because "it would be a mistake to have you back in society." Because he was a youthful offender who was fundamentally less culpable than an adult and "less deserving of the most severe punishments," this one should go back on habeas review, right?
Well, no. You see, the sentencing judge chose to accomplish locking Mr. Bunch up for life by giving him eight consecutive ten-year sentences, followed by nine additional years. All parties agree that Mr. Bunch will be 95 before he is eligible for release -- a statistically improbable age for most humans, and especially for those in the state prison system. The Sixth Circuit today appears to have determined that the constitutional principles announced in Graham, Roper, and Miller are entirely determined by how the sentencing judge gives life without parole, not whether.
The following is speculation, but it seems as though the opinion was written before the Miller decision was released and then revised with a single paragraph at the end to incorporate Miller. Despite some very helpful language in Miller, the Sixth Circuit did not believe that "youth matters" enough to affect a "virtual life sentence" like the one at issue here.
Does this opinion dash the hopes of all those serving virtual life sentences? Is the whole Graham discussion arguably dicta in light of the discussion of Teague? Will the Supreme Court weigh in once again? I'd love to hear any thoughts in the comments. In the mean time, hats off to the Ohio Public Defender's Office for a hard-fought battle. Hopefully this won't be the end of it.
Come to think of it, it actually was only a week ago, in Miller v. Alabama. That case reaffirmed the Court's decision in Graham that such youthful offenders "are less deserving of the most severe punishments" and extended that precedent even to homicide offenses.
Enter today's decision, Bunch v. Smith. Eleven years ago, when he was 16 years old, Mr. Bunch participated in a horrific robbery and rape. When he was sentenced, the judge stated that "I just have to make sure that you don't get out of the penitentiary," because "it would be a mistake to have you back in society." Because he was a youthful offender who was fundamentally less culpable than an adult and "less deserving of the most severe punishments," this one should go back on habeas review, right?
Well, no. You see, the sentencing judge chose to accomplish locking Mr. Bunch up for life by giving him eight consecutive ten-year sentences, followed by nine additional years. All parties agree that Mr. Bunch will be 95 before he is eligible for release -- a statistically improbable age for most humans, and especially for those in the state prison system. The Sixth Circuit today appears to have determined that the constitutional principles announced in Graham, Roper, and Miller are entirely determined by how the sentencing judge gives life without parole, not whether.
The following is speculation, but it seems as though the opinion was written before the Miller decision was released and then revised with a single paragraph at the end to incorporate Miller. Despite some very helpful language in Miller, the Sixth Circuit did not believe that "youth matters" enough to affect a "virtual life sentence" like the one at issue here.
Does this opinion dash the hopes of all those serving virtual life sentences? Is the whole Graham discussion arguably dicta in light of the discussion of Teague? Will the Supreme Court weigh in once again? I'd love to hear any thoughts in the comments. In the mean time, hats off to the Ohio Public Defender's Office for a hard-fought battle. Hopefully this won't be the end of it.
Statements to a probation officer fall outside the "judicial proceeding" exception to the false statement statute
In United States v. Vreeland, No. 10-1033/1034 (June 29, 2012), the Sixth Circuit held that statements made to a probation officer fall within the reach of 18 U.S.C. § 1001(a), which prohibits making a false statement in relation to a matter within United States jurisdiction.
The statute explicitly "does not apply to a party to a judicial proceeding, or that party's counsel," for statements made "to a judge or magistrate in that proceeding." 18 U.S.C. § 1001(b).
Vreeland was charged with making false statements to his probation officer during a routine meeting. He argued that because the statements pertained to his ongoing supervised release, and because "it was inevitable that the statements would be submitted to the court," the statute's reference to "a judge or magistrate" should be read to include a probation officer, at least in these circumstances.
The Sixth Circuit disagreed, finding that in this setting, "the probation officer's function [w]as more than merely a 'conduit' to the trial court" because the officer was responsible for overseeing Vreeland's compliance and had to exercise independent judgment in deciding whether to seek revocation of Vreeland's supervision. In this context, at least, the exception to Section 1001 did not apply. Importantly, however, the court reserved judgment on the question of whether the same would be true of a probation officer in a presentence interview setting.
The court also rejected Vreeland's argument that his statements to the probation officer were compelled in violation of the Fifth Amendment, crediting the district court's factual finding that Vreeland was not in custody and that the probation officer did not threaten Vreeland with arrest or violation of his supervision.
The statute explicitly "does not apply to a party to a judicial proceeding, or that party's counsel," for statements made "to a judge or magistrate in that proceeding." 18 U.S.C. § 1001(b).
Vreeland was charged with making false statements to his probation officer during a routine meeting. He argued that because the statements pertained to his ongoing supervised release, and because "it was inevitable that the statements would be submitted to the court," the statute's reference to "a judge or magistrate" should be read to include a probation officer, at least in these circumstances.
The Sixth Circuit disagreed, finding that in this setting, "the probation officer's function [w]as more than merely a 'conduit' to the trial court" because the officer was responsible for overseeing Vreeland's compliance and had to exercise independent judgment in deciding whether to seek revocation of Vreeland's supervision. In this context, at least, the exception to Section 1001 did not apply. Importantly, however, the court reserved judgment on the question of whether the same would be true of a probation officer in a presentence interview setting.
The court also rejected Vreeland's argument that his statements to the probation officer were compelled in violation of the Fifth Amendment, crediting the district court's factual finding that Vreeland was not in custody and that the probation officer did not threaten Vreeland with arrest or violation of his supervision.
Are restitution awards getting weirder?
Today's unpublished Ciccolini case is another in a disturbing trend of restitution orders that are just, for lack of a better word, weird. Mr. Ciccolini evidently pleaded guilty to violating tax laws. The district court got creative in sentencing him, giving him one day of incarceration, imposing a $350,000 fine, and ordering him to pay a whopping $3,500,000 in restitution to an organization that may have been harmed by his actions.
The problem? The various restitution statutes don't permit restitution for the crimes Mr. Ciccolini committed. Reversed. Note, however, that it was the government who originally appealed this restitution order. We can presume that this is because the government wanted more "time" and less "creativity" in their sentence. Only Mr. Ciccolini and his accountant can know what he'd prefer.
The problem? The various restitution statutes don't permit restitution for the crimes Mr. Ciccolini committed. Reversed. Note, however, that it was the government who originally appealed this restitution order. We can presume that this is because the government wanted more "time" and less "creativity" in their sentence. Only Mr. Ciccolini and his accountant can know what he'd prefer.
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